presented to: uncc students april 13, 2018 · 2018-04-23 · eb-1 •outstanding researchers,...

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Presented to: UNCC Students April 13, 2018 6100 Fairview Road, Suite 200 Charlotte, NC 28210 P 704.442.8000 www.garfinkelimmigration.com

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Page 1: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Presented to: UNCC Students

April 13, 2018

6100 Fairview Road, Suite 200Charlotte, NC 28210P 704.442.8000www.garfinkelimmigration.com

Page 2: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Based in Charlotte, North Carolina.

One of the largest immigration law firms in the Southeast.

Seven (7) immigration attorneys & twenty five plus (25+) paralegals/support staff.

Our clients include:

◦ Numerous NC colleges & universities

◦ Several NC healthcare systems

◦ One of the largest automotive suppliers in the world

◦ One of the largest electronic medical records companies in the U.S.

◦ The second largest public school system in NC

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Page 3: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

BA & JD – Wake Forest University

Practicing Immigration & Visa Law since 1984

American Immigration Lawyers Association (AILA)

◦ Member since 1985◦ Carolinas Chapter President 1995 & 1996◦ Served on National Board of Directors

Certified as a Specialist in Immigration & Nationality Law by NC State Bar since 1997

Member of Alliance of Business Immigration Lawyers (ABIL)

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Page 4: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

B.S., Meredith College

J.D., Campbell University

Practicing Immigration & Visa Law since 2006

Ms. Barnette practices employment-based immigration law.

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Page 5: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

B.A., Davidson College

J.D./M.A. (cum laude), University of Florida

Practicing Immigration & Visa Law since 2012

Mr. Hummel practices family-based and global immigration law.

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Page 6: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Introduction

Temporary Work Visas (including H-1B Visa)

“Green Card” Options, Process & Availability

The Era of President Trump

Questions & Answers

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Page 7: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Department of Homeland Security comprised of:

◦ US Citizenship & Immigration Services (“CIS”)

◦ US Immigration & Customs Enforcement (“ICE”)

◦ US Customs & Border Protection (“CBP”)

Department of State:

◦ Responsible for visa services at U.S. consulates abroad

Department of Labor:

◦ Administers Permanent Employment Certification Application process

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Page 8: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Two Visa Categories

Nonimmigrant – TemporaryImmigrant –

Permanent (Green Card)

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Page 9: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Non-immigrant Visa Type

Sponsorship Required Duration of Visa

Self Petition Work Permission Spousal Work Permission

H-1B Employer must sponsor and cover all

associated fees

Up to 6 years (longer in some

cases)

No Yes No, unless I-140 approval for H-1Bspouse (with EAD)

H-3 Trainee Employer must sponsor

Up to 2 years, no extension

No Employmentonly incidental

to training, stipend

No

J-1 Exchange Visitor

(Trainee/Intern)

Approved agency must sponsor

18 months (Trainee); 12

months (Intern)

No With DOS approval

Yes, with EAD

L-1A/L-1BIntracompany

Transferee

Employer must sponsor

Up to 7 years (L-1A) or 5years (L-1B)

No Yes Yes, with EAD

E-1/E-2 Treaty Trader/Investor

Employer must sponsor

Up to 5 years, renewable indefinitely

Yes- If owner of company

Yes Yes, with EAD

O-1 Extraordinary

Ability

Employer mustsponsor

Up to 3 yearsand extensions

possible

No Yes No

TN- NAFTA Employer must sponsor

Up to 3 years and extensions

possible

No Yes No

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Page 10: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

B-1/B-2 (Visitor Visa/Visa Waiver)

F-1 (Student Visa)

H-3 & J-1 (Trainee Visas)

L-1 (IntracompanyTransferee)

E-1/E-2 (Treaty Visas)

O-1 (Extraordinary Ability)

TN-1 (NAFTA Professional)

H-1B (Professional)

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Page 11: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

On March 9, 2016 USCIS announced a 24-month extension of post-completion OPT based on a STEM (Science, Technology, Engineering, or Math) degree

Employer must participate in E-Verify

Current list of eligible STEM degree is available online (www.ice.gov; 2012 was last revision); uses CIP code found on Form I-20

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Page 12: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Can base STEM OPT request on current or prior STEM degree

Requires employers to complete formal training plan with F-1 Student

File Form I-765 prior to post-completion EAD expiration

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Page 13: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Always employer-specific

May be position- and location-specific (depending on visa type)

Processing times for visa petition approval/visa issuance normally 120-240 days

Premium Processing Program - $1,225 secures 15-day review

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Page 14: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Position offered must require at least a Bachelor’s degree

FN must possess degree (or equivalent) related to position offered

Visa is location & job specific

Fees –◦ Government filing fees total $1710 (if less than 25 FTEs) or $2460 (if

more FTEs)

◦ Attys fees vary by firm

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Page 15: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Six (6) year limit (with exceptions) – granted in maximum of 3-year increments.

Employer must file petition, agree to pay “required wage” & return transportation costs upon termination.

FN in valid H-1B status may transfer & work for new employer upon filing of H-1B petition (portability).

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Page 16: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Since 1990, annual cap on number of H-1B petitions which may be approved.

USCIS may only approve 65,000 visa petitions per fiscal year.

Additional 20,000 visas authorized for those with U.S. Masters & Ph.D. degrees.

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Page 17: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Filing period began April 2, 2018.

Once cap is reached, no “cap subject” H-1B petitions accepted until April 1, 2019 (absent change in law).

USCIS suspended Premium Processing for all H-1B cap cases.

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Page 18: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Filing period began April 3, 2017.

On April 7, 2017, USCIS reached 65,000 H-1B petition cap AND 20,000 H-1B “advanced degree” cap.

USCIS received approximately 199,000 total H-1B petitions for FY2018.

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Page 19: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

The following are subject to annual cap:

◦ FNs seeking H status for 1st time.

◦ FNs changing from cap-exempt to cap-subject employer.

The following are NOT subject to annual cap:

◦ FNs currently in H-1B status (i.e., extensions of stay or change of employers) or FNs who have been previously counted against H-1B cap (if total of 6 years were not used up).

◦ FNs who work at institutions of higher education or nonprofit related to/affiliated with institutions of higher education or nonprofit/gov’t research organizations.

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Page 20: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Applies to F-1 students on OPT where H-1B petition accepted on or after April 1

Extends employment authorization from OPT end date (if after April 1 and before October 1) to H-1B effective date

Does not authorize travel

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Page 21: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

E-1/E-2 - Treaty Trader/Treaty Investor

O-1 - Extraordinary Ability

TN - Treaty NAFTA

L-1 – Intracompany Transferee

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Page 22: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

One does not need a visa status to own all or part of a U.S. company.

But… one does need a visa to work for a company.

USCIS wants to see an “employer-employee relationship” in connection with a visa petition/application.

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Page 23: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Five Ways to Qualify

Family Asylum Investment Diversity Lottery Employment

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Page 24: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

•Outstanding Researchers, Extraordinary AbilityEB-1

•Advanced Degree Professionals and FNs of Exceptional AbilityEB-2

•Professionals, Skilled and Unskilled WorkersEB-3

•Special ImmigrantsEB-4

•Employment CreationEB-5

Five (5) employment-based categories:

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Page 25: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

International Managers & Executives

Outstanding Professors & Researchers*

FNs of Extraordinary Ability *

◦ *USCIS regulations contain list of eligibility criteria

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Page 26: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

To qualify as “advanced degree professional”, FN must possess advanced degree & position must require advanced degree (or equivalent).

USCIS regulations set out criteria for exceptional ability.

Can bypass labor certification process by proving employment would serve U.S. “National Interest”

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Page 27: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

For FN who possesses 4-year university degree where job offered requires degree; or

For FN who possesses minimum of 2 years of experience in position requiring minimum of 2 years of experience.

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Page 28: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

STEP 1 – Labor Certification (“PERM”)

◦ Requires proof of no minimally qualified available U.S. workers

◦ Current Processing times: 5 months if no DOL audit

◦ 8+ months if audited

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Page 29: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

STEP 2 – Immigrant Petition, Form I-140

◦ Current processing times: Six (6) months +

Step 3 – Application for Adjust Status, Form I-485**

◦ Current Processing times: Up to nine (9) months

** APPLICATION CANNOT BE FILED UNLESS PRIORITY DATE IS CURRENT

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Page 30: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

EB-1

All Countries except

for India and China:

Current

India:

January 1, 2012

China:

January 1, 2012

EB-2

All Countries except

for India and China:

Current

India:

December 22,

2008

China:

August 1, 2014

EB-3

All Countries except

for India, China &

Philippines:

Current

India:

February 1, 2008

China:

June 1, 2015

EB-4

All Countries

expect Mexico,

El Salvador,

Honduras, and

Guatemala:

Current

EB-5

All Countries

except China:

Current

China:

July 22, 2014

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Page 31: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

January 27, 2017 - President Trump signed an executive order halting refugee admission and barring people from seven countries:

◦ Iran, Iraq, Yemen, Libya, Sudan, Somalia, Syria

The order was immediately challenged in several Federal Courts. A nationwide injunction was issued on February 3, 2017.

February 9, 2017 - the 9th Circuit Court of Appeals ruled against the reinstatement of the travel ban.

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Page 32: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

Ban 3.0 was announced September 24, 2017 and went into effect December 8, 2017

Covers:◦ North Korea and Syria- All immigrant and non-immigrant visas◦ Chad, Libya, and Yemen- All immigrants and non-immigrant

tourist and business travelers◦ Iran- All immigrants and non-immigrants except F, J, and M

visas (though with additional scrutiny)◦ Somalia- All immigrants. Non-immigrant visas will have

additional scrutiny;◦ Venezuela- a ban on non-immigrants visas for certain

government officials and their families

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Page 33: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

◦ Applies to those outside the U.S. on the effective date without a valid visa

◦ Exceptions

lawful permanent residents

FN’s admitted or paroled in the U.S. on the effective date;

FN’s with valid travel documents

Dual Nationals

◦ In addition, there is a waiver process available

Must prove denial of entry would cause undue hardship;

Entry of the FN would not pose a threat to the U.S; and

Entry of the FN would be in the national interest.

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Page 34: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

◦ Buy American and Hire American Executive Order

◦ Revocation of H-4 EADs

◦ Revocation of International Entrepreneur Parole

◦ Renegotiation of NAFTA

◦ Changes to the H-1B lottery System

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Page 35: Presented to: UNCC Students April 13, 2018 · 2018-04-23 · EB-1 •Outstanding Researchers, Extraordinary Ability EB-2 •Advanced Degree Professionals and FNs of Exceptional Ability

[email protected]

[email protected]

[email protected]

6100 Fairview Road, Suite 200Charlotte, NC 28210P 704.442.8000www.garfinkelimmigration.com